In 1985, the Supreme Court of Canada declared that all of the laws of Manitoba enacted in the last 95 years had been unconstitutional, because they had not been translated into French. Even the seemingly-apparent remedy of simply translating all the laws and regulations might be sufficient, because even the laws governing the election of legislators were unconstitutional. In a case called Re Manitoba Language Rights, the Supreme Court suspended its declaration of unconstitutionality under s. 52(1) of the nation’s constitution (which had only recently been enacted in 1982), giving time for the Manitoba legislature to comply with its duty.[1]

However, the book contains two startling surprises. At first, the author, a Toronto attorney, makes skillful and appealing arguments against the injustices that result when courts use judge-made rules, like res judicata, collateral estoppel, and severability, to refuse consider constitutional arguments. (In the US we might add abstention, as-applied relief, the rational basis doctrine, and standing, among too many other examples).

To
this list Peltomaa adds the suspended declaration of invalidity. He gives as examples
criminal prosecutions and tax cases which the courts admitted were
unconstitutional, but which were allowed to proceed anyway. (Manitoba
Language Rights has been cited more than 300 times).

Peltomaa
crafts a textual protest: the supremacy clause of the Canadian constitution
means what it says, he tells us: unconstitutional laws are of no force or
effect, and the courts are without power to say otherwise. In fact, the author
explains, such laws are unconstitutional ab initio; section 52(1)
confers no remedial power on the Canadian Supreme Court to prop such laws up
until an emergency is revolved (or, to paraphrase the pamphlet’s evocative
language, to “breathe life” into a moribund, or zombie law).

The
first unsettling surprise of the book came when one realizes that these
arguments, libertarian though they seem, being based on textualism, smack
heavily of what we in the U.S. would call “originialism.”[2]

Canadian Originalism and the Right to a Remedy

What
we are seeing in this book is the other side of the textualism we’re used to
witnessing from the US, the rights-protective side of textualism. Almost never does
Peltomaa complain about freedoms that are enjoyed because of living
constitutionalism; for example, he describes a subsequent case from the
Canadian Supreme Court, Nova Scotia (Attorney General) v Phillips, 1986
CanLII 3941 (NSSC).

In
that case, it seems, a law that provided welfare benefits to single mothers,
but not to single fathers, ran afoul of the guarantee of equality in the
Canadian constitution, and the Nova Scotia Supreme Court decided to declare the
entire law unconstitutional. (In a subsequent case, the Supreme Court referred
to the outcome as “equity with a vengeance”).

Peltomaa
criticizes the Phillips case on the ground that nothing in the Charter
forbids extending welfare benefits to an individual. He reveals what seems to
him the proper remedy some pages later: section 24(1) of the Charter “provided
the necessary foundation for applications by aggrieved persons for appropriate
and just remedies[.]” That section grants vast power, Peltomaa says; the
provincial Supreme Court should have permitted the law in that case to remain
in effect, and allowed aggrieved single fathers to “pursue a damage award on a
class action basis.”

Nowhere
in the book does Peltomaa criticize notions of gay and lesbian freedom and
equality, or the right to choose abortion, to give two examples of originalist
opinion in the US; however, he does opine that the Manitoba Language Rights
case “began a judicial odyssey with bountiful possibilities for the discovery
and creation of new constitutional rights and obligations.”

Regarding
the new rights that were discovered or created, what were they? Peltomaa
doesn’t tell us. Are there important new rights that were created as a result of
the case that we should know about?

How to Address the Constitutional Crisis in Manitoba

Peltomaa
rejects the suspended declaration of unconstitutionality in toto,
notwithstanding any putative danger to the very rule of law in Manitoba. What
then is his proposed solution to the constitutional crisis recognized by the
High Court in 1985?

While
the doctrine of state necessity is well-recognized in common law jurisdictions,
it is usually confined to action by the legislature or executive branches, not
the judiciary, which is insulated from political accountability to the
electorate.

And
there lies the second shocker of the book: s. 33 of the Canadian constitution
permits a legislative override of the Charter for up to five years, with
extension possible. But if Canada has no rights protections that cannot legally
be stripped with a mere majority vote, how rights-protective is that?

What is my solution to the crisis in Manitoba Language Rights? To me, it sounds like a remarkably unique opportunity for the people of Manitoba to fix the dead hand problem in constitutional law once and for all.[3]

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